States' Rights Aren't the Enemy in Gay Marriage Battle

President Barack Obama came out Wednesday not only as a supporter of gay marriage, but also as a Tenther!

No, not really. He did say that he believes individual states have the right to set their own policies on recognizing gay marriages. His sudden acknowledgment of states' rights certainly comes as a surprise to anybody who has been following his administration's abominable behavior with regard to legalized medical marijuana. Cynicism is perhaps the appropriate response from any libertarian.

But I'm much more fascinated by the response of the generally progressive gay and lesbian community to any invocation of states' rights. Even though pretty much every gain in recognition of gay marriage has taken place on the state level, the Tenth Amendment is still frequently seen on the left as an excuse for cranky right-wing secessionists to try to force schools to teach creationism. Advice columnist Dan Savage declared Obama's transition on gay marriage not quite complete because of his deference to the states on actual policies.

In 2010, Judge Joseph Tauro of the federal District Court of Massachusetts ruled in Massachusetts vs. U.S. Dept. of Health and Human Services that the federal Defense of Marriage Act was an unconstitutional violation of the Tenth Amendment (decision here [pdf]). In response, Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale, warned: "As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power." (This is the part where libertarians yell, "That's a feature, not a bug!")

Balkin believes Tauro's decision can't possibly stand, and he may ultimately be right, given the general deference to federal authority that has become the hallmark of the Supreme Court.

But you win zero percent of the fights you don't have. States' rights have been vital in allowing gay marriage victories, not just losses. The federal Defense of Marriage Act was signed into law under President Bill Clinton in 1996, forbidding the federal government from recognizing same sex marriages. Yet, since the law's passage, six states and the District of Columbia have gone on to allow for legal recognition of gay marriages anyway (and two others may join them this year). Regardless of federal law, states are carving out their own language of what constitutes a marriage (or civil union, or domestic partnership), and this has resulted in more recognition for gays, not less.

Fighting on the state level for gay marriage recognition is mandatory because of how slow and conservative (in temperament, not necessarily political philosophy) the federal government often is. By the time the Supreme Court actually struck down anti-miscegenation laws in 1967, they had already been repealed in all but 17 states. Many states had already struck down sodomy laws by the time the Supreme Court ruled them unconstitutional in 2003. Even though four out of five Americans had decided by 2010 that prohibiting gays from serving openly in the military was stupid, it took a tremendous amount of political maneuvering to actually end the Don't Ask, Don't Tell policy, and some Republican presidential candidates swore they would bring it back if elected in 2012. Federal government is slow. Federal government doesn't lead, no matter how much progressives wish it would. It follows the flow of the public, and so Obama's "evolution" is not particularly unusual any more than it is for the rest of America to be slowly coming around in support as well.

The fear of embracing the Tenth Amendment resides in the acknowledgment that if a state has the authority to recognize gay marriage, then it also has the authority to deny it. And thus gay marriage is an equality issue, a Fifth Amendment and Fourteenth Amendment issue. It's not about states' rights. While ultimately true (just at it was ultimately true with interracial marriage bans), the actions on the state level help inform and sharpen the debate before the federal government. Anti-miscegenation came before the Supreme Court first in 1883 and the laws were upheld. Most states had these laws, but they started falling after World War II. The states led the way to the Supreme Court decision. No, the Tenth Amendment was not invoked, but it's hard to imagine the justices pondering the interracial marriage question if so many states hadn't already answered the question for them.

Consider the arguments that will likely be used to defend California's Proposition 8 or the Defense of Marriage Act before the Supreme Court. How many of those arguments regarding the "compelling state interest" in denying marriage recognition to gays and lesbians can be countered by virtue of the gains made on the state level in the past five years? How much harder would it be to attempt to argue for the federal recognition of gay marriage if no state had taken the plunge yet?

The gay and lesbian community should not fear states' rights or the Tenth Amendment. History has shown that these smaller political battles are the building bricks that will lead to the national consensus, and thus the desirable federal outcome.

As for the libertarian position of getting the government out of the marriage business entirely, well, if that argument is ever going to lead to political action and not just boilerplate disclaimers, these gay marriage battles are a precursor. It would be foolish to believe that the federal government would ever take the lead in giving up its own authority to formally recognize marriages. The battle will start with one state and grow from there.